Marriage is the foundation of the civil society and no part of the laws and institutions of a country can be of more vital importance to its subject than those which regulate the manner, and condition of forming, and if necessary of dissolving the marriage contract. – Lord Westbury in Shaw v Gould
The growth and development of contemporary society in Nigeria and present social, political and economic pains (particularly in an economy in recession),being inflicted on per second dosage on most Nigerians have had grave or adverse effect on the life span and sustenance of marriages in general and customary law marriages in particular. The consequential hardship and challenges existing in many marriages today violently push the edges of the enclosing envelope of survival of most marriages, leading to greater number of cases of separations or outright divorce. Invariably,issues relating to the dissolution of marriage generally, and the ancillary reliefs of custody and maintenance of the children (if any) of such failed marriages have once again been pushed to the front burner of legal discourse. This is particularly true of the dissolution regime of marriages contracted under customary law, features of which are not as rigid and formal as statutory marriages. Nigeria, being a country of diverse people and culture, presents a deluge of customs, usages and traditions governing marriage, divorce and custody relative to each community. Within this diversity, unity is evident. So that there can be distilled some rules of customary law of marriage in the areas under consideration that are common to or similar in most of these communities.
According to Dr. Akinola Aguda,
There is no doubt that the rules governing customary marriage vary from place to place, if one may say so from time to time, like all other rules of customary law, anywhere, but one can hardly subscribe to the suggestion that in spite of that, we cannot find basic requirements of a valid customary marriage.
To that extent, we may say that what we have is a customary ‘Law’ of marriage which varies from place to place according to the customs of the people
These diverse customary laws of marriage prescribe basic and obligatory rules governing the creation of valid customary marriages, dissolution and custody of children etc. The fulcrum of this paper therefore, is to critically examine the law relating to customary law marriages from the perspective of dissolution, custody of children, maintenance and other issues relating thereto. In this regard, it is good business to begin this discourse with the definition of some key words in this paper. These are Customary Law, Marriage, Dissolution, Custody and Maintenance.
Dissolution of Customary Law Marriages.
There are two ways in which a customary law marriage can be dissolved. These are by non-Judicial and Judicial methods.
Before considering these two methods in greater detail, it is imperative to underscore the legal principle that once there is evidence of defacto celebration of marriage either under the Marriage Act or under customary law, there is a strong presumption in favour of the validity of the marriage. Therefore customary law marriage cannot be dissolved by mere wishful thinking or assertion. In the celebrated case of Ezeaku v. Okonkwo, the deceased, a Senior Advocate of Nigeria, was married to the 1st defendant under native law and custom. They had a child and thereafter separated and the deceased subsequently got married to the plaintiff. He thereafter deposed to an affidavit wherein he stated that the plaintiff was his only wife. After his demise intestate, the 1st defendant sought to partake of the estate of the deceased which was placed under the management of the office of the Administrator General/Public Trustee of Enugu State. The plaintiff therefore commenced an action in the High Court of Enugu State by originating summons seeking the determination of the following issues:
(a) Whether the affidavit deposed to by the deceased carry the force of law.
(b) Whether the said affidavit was not sufficient notice to the whole world with respect to the marital Status of the deceased under native law and custom.
(c) Whether the affidavit did not determine effectively the purported right of the 1st defendant vis-à-vis the estate of the deceased.
The High Court resolved these issues in favour of the plaintiff. Upon an appeal by the 1st defendant to the Court of Appeal (Enugu Division), the court in allowing the appeal held interalia that the trial court erred in holding that the marriage was dissolved because the deceased deposed to an affidavit to the fact that the plaintiff was his only wife without taking the proper step to dissolve the marriage between him and the 1st defendant. According to Oseji JCA (delivering the lead judgment),
…. When there is evidence of thedefacto celebration of marriage either under the marriage Act or under customary law, there is a strong presumption in favour of the validity of the marriage. In the same vein, the said marriage cannot be said to have been dissolved by mere wishful thinking or assertion….”
Accordingly, the Court held there is a standard process for the dissolution of marriage whether statutory or customary and concrete evidence that the necessary requirement were satisfied must be adduced before a court can hold that there has been a divorce and the validly contracted marriage between a couple had formally and legally come to an end. It is not enough for either party to a customary marriage to suomotu bring it to an end by merely deposing to an affidavit to that effect as in this case.
The Court of Appeal held further that, legal authorities have it that the proof of the dissolution of customary marriages requires a high degree of certainty. This form of marriage and also statutory marriage is not dissolved by effluxion of time. So that living apart for 17 years, as in this case, cannot be a ground to hold the marriage between the appellant and the deceased Senior Advocate had been dissolved.
Similarly, in the case of LawalOsula v LawalOsula, the court held as follows:
Living with a man and having children for him alone does not necessary make a woman a wife of the man under native law and custom. In the same way, a woman who is a wife of a man under native law and custom does not divorce the man merely by leaving him and staying with another man for who (sic) she has children.
Methods of Dissolution of Marriage Contracted Under Customary Law.
A popular but erroneous view held by many is that a customary law marriage can only be dissolved by a customary court. For instance, in the case of Aabeja v Aabeja19, the court held that a marriage under native law and custom can only be dissolved by a court and it is not sufficient that one of the parties to the marriage declares that he or she no longer wants the other. With respect, this is not the correct position of the law. In addition to judicial dissolution, there also exists side by side non judicial form of dissolution of marriage contracted under customary law.
(a) Non-Judicial Dissolution
This form of dissolution of customary law marriage is carried out informally without the formalities of any judicial process. It is undertaken inter parties, usually with the knowledge and participation of members of the families of the couple who at this point may be at daggers drawn or at least in an active state of animosity. Non Judicial Dissolution may be executed unilaterally or by mutual agreement of both parties. In the case of Ezeaku v Okonkwo20, the court upheld this principle and stated that a marriage under native law and custom can be dissolved either unilaterally or by mutual consent, subject to the refund of dowry.
Similarly, in the case of Okpanum v Okpanum the court held that:
Unlike in English law, dissolution of marriage under native law and custom can be extra-judicial. No ground for divorce need be alleged or proved. It is sufficient for a husband to arrange a meeting where he duly informs his parents in law of his intention to bring the marriage to an end.It is not necessary for the husband to return the wife physically to her family nor is the return of the dowry necessary.
As we shall see shortly, this latter part of this diction relating to the lack of necessity to return the bride price is with respect, not supported by a host of other judicial authorities.
Mutual non-judicial dissolution of customary law marriage often happens after prior attempt or attempts have been made to reconcile the parties. Where both sides dig deep into their trenches in their resolve and persistence to dissolve the marriage, an agreement may then be reached on dissolution and other collateral issues such as the return of bride price and custody of children. Unilateral non-judicial dissolution by either party may be in the form of a party to the marriage opting to end cohabitation with the other party following a clear unequivocal intention to bring the marriage to an end. Thereafter the bride price is returned to the family of the manand a subsequent return of the belongings of the woman to her or her family, where necessary. The marriage is dissolved only when the bride price is refunded.
(b) Judicial dissolution
Under this dispensation, customary marriage is brought to an end by the instrumentality of the judicial process. This form of formal dissolution of customary marriage is surging in popularity, relevance and attraction. This is largely attributable to the fact that it provides recorded evidence of divorce, provides an avenue for the return of bride price in circumstances that would otherwise have been difficult or impossible as well as presents an impartial judicial platform for the just determination of ancillary issues such as custody of the children of the marriage.
Customary courts in Nigeria are vested with jurisdiction to dissolve customary marriages. Their jurisdiction in this respect is unlimited. In Edo State, under the Customary Courts law 1984 of defunct Bendel State (as applicable to Edo State)22, the Area and District Customary Courts created under that law are vested with unlimited jurisdiction over matrimonial causes and matters under customary law, this clearly involves divorce. This dispensation must be distinguished from matrimonial causes or matters under the marriage Act over which customary courts have no jurisdiction. In such matters jurisdiction is firmly resident at the High Court.
The relative or comparative ease and simplicity with which customary law marriage can be dissolved by customary courts as against the difficulties, technicalities and delay experienced in a quest to dissolve statutory marriages at the High Court, has quite clearly encouraged a greater interest in the celebration of customary law marriages by the people, even among the elites.
Grounds for Dissolution of Customary Marriages.
Generally, whether dissolution of customary marriage is sought judicially or extra-Judicially, no reason or ground need be stated or given by the party seeking dissolution. In this respect, a lot depends on the prevailing customs and tradition of each community. There is therefore no uniformity in this area. In practice however, some grounds for dissolution are quite common to a host of communities. These include, ill-treatment of either party, impotence or sterility, insanity, leprosy or other life threatening diseases, failure or inability to consummate the marriage, lack of respect, fetish practices or witchcraft etc. Apart from this, in some states in Nigeria, the Marriage Divorce and Custody of Children Adoptive by-laws (applicable to the states of Ogun, Oyo, Ondo and Defunct Bendel State)(now Edo and Delta States) make elaborate provisions for grounds for dissolution of marriage under customary law. Under this law, the following matters shall be taken into consideration by a customary court when making an order for the dissolution of any marriage. These are:
(a) Betrothal under marriageable age.
(b) Refusal of either party to consummate the marriage.
(c) Harmful diseases of a permanent nature which may impair the fertility of a woman or the virility of a man
(d) Impotency of the husband or the sterility of the wife
(e) Conviction of either party for a crime involving a sentence of imprisonment of five years or more
(f) Ill-treatment, cruelty or neglect of either party by the other,
(g) Veneral disease contracted by either party
(h) Lunacy of either party for three years or more,
(i) Adultery
(j) Leprosy contracted by either party.
(k) Desertion for a period of two years or more
The section also contains a proviso that no order for divorce shall be made in respect of an application made by a wife who is nursing a child under three years of age or who has three children or more by the husband unless the court is satisfied that there are special ground for making the order, where upon the reasons shall be recorded in the record of proceedings.
Under the by-laws, all other claims or debts other than dowry, by one spouse against the other shall only be recoverable in a separate suit as debts when supported by valid documents. Also related to this is a claim for a refund of money spent on items such as clothes for a spouse. In the case of Okaludo v Omama a man instituted an action in a customary court claiming (a) the refund of bride price on his former wife who had indeed remarried (b) the return of money he spent buying clothes for her. The court ordered the repayment of the sum of E10 out of the bride price by the woman but dismissed other claims. On appeal, it was held interalia that expenses related to clothing do not form part of the bride price and is therefore not refundable.
A very common and volatile ground for dissolution of customary law marriage is the ground of Adultery. It is therefore imperative to dwell on it in a little more detail. What is Adultery? The answer to this question has been provided by a host of judicial authorities. One of such authorities is the case of Isaac Atansuyi v YakubuGbadamosi26where the court held in relation to adultery as follows:
Adultery is defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse during the subsistence of the marriage:
In the case, Adeyemi v. Adeyemi, the court held on the issue of adultery that the general rule is that the burden of proof lies on the person who alleged adultery and that the same strict rule, as in criminal cases applies. Adultery must therefore be established beyond reasonable doubt. In order to succeed however, it is not necessary to prove the direct fact and even an act of adultery in time and place. In nearly every case, the fact of adultery is inferred from the circumstances which lead to it.
Judicial decisions of acts that sufficiently meet this standard of proof have really not been that simple, consistent or straight forward. For example, in the case Adeyemi v Adeyemi28 the petitioner and the respondent were an estranged couple and they lived apart at all times material to the petition. One night the petitioner paid a surprise visit to the respondent. He found the door locked. He knocked but there was no response. His continuous banging on the door eventually forced the door open where he met the respondent and co-respondent. The respondent was sitting on the bed with “her wrapper carelessly thrown around her body and the co-respondent’s shirt was not properly tucked into his trousers”. The petitioner contended that the respondent committed adultery with the co-respondent. The court held that the circumstances in which the respondent and the co-respondent were found were sufficient to infer adultery. However, in the face of more vivid and lurid evidence and circumstances, the court in the case of Erhahon v. Erhahon,. Arrived at a different finding and consequently refused a petition on the ground that adultery was not proved by the petitioner. In this case, the petitioner in trying to prove the adultery of the respondent, produced some pictures taken by the respondent with the co-respondent in compromising positions including nude pictures taken in several positions; standing, sitting and lying down together inclusive. In reading its decision, refusing to infer adultery, the Court of Appeal held that “the photographs by itself do not constitute proof of active sexual intercourse actually going on like what one sees in video films.’’ PerAkpabio JCA.
Venue to Institute the Action for Dissolution of Customary Marriage.
A party that is desirous of walking down the path of judicial dissolution of customary marriage is usually required to determine in limine the question of the customary court with territorial jurisdiction to determine the case. Is the appropriate customary court located in a place where the marriage was celebrated? Or where the custom under which the marriage was celebrated is observed or prevalent? For example, where the marriage is contracted under Esan customary law, is the appropriate customary court one with territorial jurisdiction in any or the entire Edo Central senatorial zone where theEsanspeaking people of Edo state are housed? The answer to this question is quite simple. Like all other civil causes or matters, customary courts in any part of Edo and Delta states by virtue of their respective Customary Courts Law, exercise jurisdiction over an action for the dissolution of customary marriage; provided the defendant was resident in its area of jurisdiction where the cause of action arose. Under these Customary Courts Laws; “Civil causes other than land causes shall be tried and determined by a customary court having jurisdiction over the areas in which the defendant was at the time the cause of action arose.’’
This clearly means that an action for the dissolution of a customary marriage in any part of Nigeria can be instituted in any customary court in Edo and Delta States, provided the defendant was at the time the cause of action arose within the jurisdiction of the court at the time the cause of action arose.In the case of Aiyelabagan v. Local Government Service Commission, A cause of action is defined as:
A set of facts which establish or give rise to the right to sue and or the factual situation which gives a party a right to judicial relief. The cause of action in a suit incorporate every fact which would support a party’s right to succeed or to have the judgment of the court in his favour.
In Abia state, under the Customary Courts Law of Abia, part 4 thereof, a customary court shall have and exercise jurisdiction overall causes and matters arising from marriage under native law and custom whether or not the marriage is contracted in Abia state if-
(a) Both parties are indigenes of Abia state
(b) Both parties are resident in Abia state
(c) The defendant is resident in Abia state
(d) The goods and chattels being claimed are lying in Abia state,
(e) The immovable properties being the subject matter of the suit situated in Abia state.
Provided that where the customary marriage in issue was contracted in a state other than Abia State, except the contrary is proved, the customary law of the marriage shall be deemed to be identical with customary law operating within the jurisdiction of the court hearing the cause or matter.
Similar to the Edo and Delta State Laws, the Customary Court Law Abia State further provide that all civil causes or matters other than land causes or matter shall be tried and determined by a Customary Court in the area where the defendant was at the time the cause of action arose.
Bride price
According to chambers 21st Century Dictionary, a bride price, “is a price paid to a bride’s family by the bridegroom.”33The term bride price is often used as synonymous with “dowry “even in some statutes. This it is submitted is not proper. Dowry appropriately used, refers to “an amount of wealth (or money) handed over by a woman’s family to her husband on marriage.”34According to Chief Tom Anyafulude in his book,35 refund of bride price may follow dissolution of customary marriage. Where a customary court has made an order for dissolution, it may make an order for the refund of bride price. In making such an order, a customary court in Enugu State is bound by the provisions of customary marriage (special provisions) Law. 36 Under this law, dowry does not mean only money. “Dowry” means any gift or payment in money-natural produce, brass rods, cowries or any other kind of property whatsoever, to a parent or guardian of a female person on account of a marriage of that person which is intended or has taken place. A bride price is paid to the parents or guardian of a woman and not to her it is therefore not proper for a court to order a refund from a woman.
(a) Significance of the Return of Bride Price.
According to Maurice O. Izunwa37the return of the bride price on a bride is the critical threshold in customary divorce procedure. Once the bride price is returned by the family of the woman, all incidents of customary marriage falls apart irretrievably. Even where a customary marriage is dissolved by order of court, a consequential order for a return of the bride price by the family of the woman ought to be made by the customary court even when it is not expressly asked for, unless a husband expressly renounces same.
In the case of Ezeaku v. Okonkwo the court of Appeal adopted the views of Professor E. I. Nwogwugwu in his book family Law in Nigeria thus:
Usually the dissolution of customary law marriage is effected or accompanied by the refund of the bride price paid in respect of the marriage….. the refund of the bride price is one of the important subjects to be settled by the family group that unsuccessfully attempts to reconcile the parties it is however open to a husband to exercise or renounce his right to claim a refund of the bride price. Any renunciation of that right must be (done) formally and equivocally …. In that case, the marriage will be regarded as dissolved from the time of renunciation and there will be no need for the bride price to be actually refunded.
Similarly, in the case of Eze v.Omeke, the court held interalia, that it is the refund of the bride price or dowry that puts to an end all incidents of customary law marriage and not an order of any court dissolving the marriage. It held further that any dissolving customary order without the refund or acceptance of the bride price or dowry is meaningless. In spite of the foregoing, there are many instances where the refund of bride price loses its significance in the context of the dissolution of customary marriage
These include:
(1)Where a husband renounces his right to a refund of the bride price formally and equivocally as discussed above.
(2)Where a husband divorces his wife, same customs dictate that the refund shall not take effect until the wife remarries. This customs is common among the Igbos, South East Nigeria.
(3) Where the husband or members of his family evade receipt of the bride price. In this case, a woman may include in her petition for dissolution of marriage, an order for the bride price to be paid into court.
(b) Quantum of Bride Price Refundable
According to J. O. Ajibola,40 some salient points in this regard must be underscored. These include:
(1) In some communities, the amount of bride price to be refunded diminishes in proportion to the number of years that the woman has lived with the man. For instance, in relation to the quantum of refundable bride price, the following factors are taken into consideration:
(a) Duration of the marriage.
(b) The number of children in the marriage.
(c) The conduct of the parties and their blame worthiness in the events leading up to the dissolution of the marriage.
Also in this area, some local councils have made bylaws stipulating what amount of bride price is refundable by a woman relative to the number of years she has being married to a man. One of such bylaws is the Marriage, Divorce and Custody of children Adoptive Byelaws 1958 supra. Under this law, the following is statutorily prescribed as refundable bride price relative to the circumstances and the length of time the marriage lasted.
(i) Where a marriage has not been consummated …………………… N70,000.00
(ii) Where a marriage has existed for less than one year……………….N60,000.00 (iii) Where a marriage has existed for one year or more (but less than 5 years) ……… N50,000.00
(iv) Where a marriage has existed for five years or more ………….. N40,000.00.
In the case of OssaiOkaluda v Omema the court held that the refundable bride price diminishes according to the duration of the marriage. There is little doubt that this law is very difficult to enforce in practical terms and is now largely obsolete. Firstly, the law presupposes uniformity in the amount of bride price payable which is more than the statutorily prescribed amount stipulated as refundable above. This of course, is not the case. There is no uniformity in the amount of bride price payable when customary marriage is being entered into. Some communities actually prescribe less than the above amount. Secondly, many families nowadays receive only a token amount as bride price. When the marriage subsequently fails, little or no thought is given to this area in view of the insignificant amount previously paid as bride price
(c) Return of Gifts, presents etc.
A common relief contained in a petition for dissolution of customary marriage often by a man is a claim for the return of gifts, presents or money, such as money spent on the funeral of a parent or parents of the woman. In the case of Okoriko v. Otobo43the court held that presents, gifts or other items given to the wife and/or her parents or any money spent at the funeral of ceremony of any parent of the woman are not refundable with the bride price.
7.0 Dissolution by Death. In marriage under customary law, the death of a wife brings the marriage to an end. But where it is the husband that dies, this is not necessarily the case. Justice U. Onyemenam, holds the view, that in the case of the death of a husband, the widow has the following options:
(i) To remain in the late husband’s family house as his wife. Any child she bears during such period is deemed a legitimate child of the deceased husband. This is often described as “Ghost marriage”. In some parts of Igbo land, such a child may be named, “Azunna”.
(ii) To remarry a member of her late husband’s family,except her own son. This is usually done to ensure the continued maintenance of the widow.
(iii) To return to her parent’s house and remarry. Where this is done, she is obliged to refund the bride price. This is so because her return and remarriage is deemed to be a form of divorce. However, the court in the case of Yesufu v. Okhia45has held that death terminates the marriage and it was mere fiction to suppose that the marriage was subsisting. Consequently any custom, which restricted the widow from remarrying or having an affair until some fetish ceremonies was performed, was repugnant to natural justice, equity and good conscience. This judicial decision is no doubt commendable.
Dissolution of “Marriage by Cohabitation”.
It is very common to see a petition filed in a customary court seeking dissolution of what is sometimes referred to as “marriage by cohabitation”. By this expression, it is meant a relationship whereby a man and a woman or his mistress come together in cohabitation and often times start having children without the fulfilment of any of the requirements of a valid customary marriage or indeed any marriage at all. This category of a woman falls into that which Lord Denning referred to under English law as common law wife.46 According to Denning, the common law never recognized such a person. In the same vein, customary law does not also accord recognition to her. The law is settled that cohabitation, no matter how long cannot crystallize into a valid marriage under customary law. As we have seen, this was the decision of the court in Ezeaku v. Okonkwo. Consequently, customary courts have no jurisdiction over such cases not been matters falling into the class of matrimonial causes and matters over which jurisdiction is conferred on the court.
Finally, on a general note the point must be made, as is obtainable in other forms of marriages, that once dissolved a customary marriage cannot be brought back to life. Where the parties are desirous of coming back together as man and wife under customary law, a fresh marriage must be contracted by the parties.
*BRIGHT E. ONIHA LL.B (Hons), LL.M. BL, Ass.Mem.CIA(Nig), President 1 (Special Grade) Area Customary Court, Edo State Judiciary. Email:Onihalawlibrary@gmail.com
Credit: BRIGHT E. ONIHA, Dnllegalandstyle